Introduction to California Probate: Part 2 by Benjamin H. Eagleton

As discussed in my last article, depending on the type of property and its value, a Court order and formal Probate proceeding may be necessary. Specifically, real property (a house, condo, apartment, and vacant land) which is valued at or above $50,000 and personal property (jewelry, bank accounts, and securities) exceeding $150,000 of value will require a formal proceeding assuming a Non-Probate Transfer does not apply. If a formal proceeding is needed- curb that knee-jerk reaction. This is not terrible news.

So, Where to Begin?

Search out and consult with a Probate or Estate Planning Attorney (and find one that you like because he or she will be guiding you through a 9 to 12-month process). A competent Attorney, well-practiced in Probate procedure, will quickly identify which assets need to be included in the Probate and prescribe you with a plan of action.

NOTE: It can be quite beneficial to enlist a law firm with several areas of practice. For example, when an Estate includes Business Interests a law firm that also practices Business Law will have those resources readily available. Many Estates include rental properties with tenants, and when managing the Landlord-Tenant relationship during the Probate a law firm that handles Landlord-Tenant disputes can deal with those issues effectively and efficiently. Also, when engaging a law firm, it can be very reassuring to know that firm also handles litigation.

When to Begin?

When a friend, family member, or other loved one passes away, it’s important their property is transferred timely. In Probate procedure, there are time sensitive deadlines some of which demand immediate attention. When deadlines are missed, complications arise, and significant advantages can no longer be taken. One bright-line rule has to do with Disclaimers. For numerous reasons it can be advantageous for some to disclaim, or turn-down property they would otherwise inherit. But that disclaimer must be made within 9 months of the friend, family member, or other loved one’s date of death. Also, the Probate Code includes valuable Claim Statutes, which when properly taken advantage of can preserve the Estate.

How to Begin?

After the property has been analyzed, your Probate Attorney will determine how the Estate will be distributed and there are two paths:
Testate Succession (Transfer by Will) – If your friend, family member, or other loved one created a valid and properly drafted Will, then that instrument dictates distribution of the property. When a valid and properly drafted Will exists, the instrument, among other things, nominates an Executor. The Executor however, has no authority to transfer assets without Court approval.

Complications can arise when the Executor is no longer living, or is incapable of acting as Executor due to indifference, physical, or mental limitations. In cases such as this, the Will still dictates distribution however, an Administrator with Will Annexed is appointed to carry-out the distribution. In some cases, the Executor lives outside of California, and this can make the individual ineligible for appointment as Executor which would also require an Administrator to be appointed.
Intestate Succession (Transfer without Will) – If a Will was never created, or the Will was not properly drafted, or if it does not effectively transfer all property, then the laws of intestacy control all or some of the distribution. This truly means that the State of California, and more specifically, the Laws of the State of California, determines to whom the property will transfer. Many of my clients are surprised to learn that not all of a deceased person’s property will transfer to a surviving spouse. In fact, only the community property share will pass to the surviving spouse, and the separate property will be shared by the surviving spouse and the deceased person’s children.

In terms of who will distribute the property when no will exists, someone must be appointed by a Court to act as Administrator of the Estate. According to California Law, that person must of course be willing to act, but also must be entitled to appointment or nominated by a person who is entitled to appointment.

When someone is willing to act as Administrator, but does not have priority of appointment, and cannot obtain a nomination by someone else who has priority, a Public Administrator will carry-out the distribution.

Initiating the Proceeding

Once its been determined how the Estate will be distributed, your Probate Attorney will file a Petition in the Court and request someone be appointed to administer the Estate. A hearing date is scheduled for the Petition, and your Probate Attorney will appear on your behalf. Assuming the appointment is not challenged, and the Petition has been prepared appropriately, the Court will appoint some to act as Executor, or Administrator. This marks the beginning of the Probate proceeding.

Again, California Probate does not have to be feared – even if a formal Probate Proceeding is necessary. A competent Probate Attorney can guide you through the process to minimize the time and expense involved in transferring property upon death.

The attorneys of BPE Law Group, PC. have been advising our clients on real estate, business and estate planning issues for over 20 years and have been assisted numerous clients in probate matters. If you have questions concerning any legal matter, give us a call at (916) 966-2260 or e-mail Keith at kbdunnagan@bpelaw.com or Benjamin at bheagleton@bpelaw.com. Our flat fee consult for new clients may get you the answers you need for the questions you have.

The information presented in this Article is not to be taken as legal advice. Every person’s situation is different. If you are facing a legal issue of any kind, get competent legal advice in your State immediately so that you can determine your best options.

Today, we continue our look at the probate process in California and how the process of a probate is commenced. Probates can be done either with a will in place (testate succession) or without a will in place (intestate succession).

As always, if you have any questions about your real estate, business, estate planning, or any other legal issue, please let us know by e-mailing me at kbdunnagan@bpelaw.com.

Also, remember that we do legal presentations for business and community organizations. If your group would like this, please contact Alex, Steve or me to setup a date and time.